R v Purcell - [2017] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v Purcell [2017] QCA 111

PARTIES:

R
v
PURCELL, Jiah Rhys
(applicant)

FILE NO/S:

CA No 1 of 2017
DC No 220 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 24 November 2016

DELIVERED ON:

31 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2017

JUDGES:

Sofronoff P and Gotterson JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a vehicle causing death and five summary traffic offences – where four of the summary offences were committed while the applicant was on bail for the indictable offence – where the applicant was sentenced to eight years’ imprisonment for the indictable offence, six months’ imprisonment for failing to stop and two months’ imprisonment for each of the other summary offences to be served concurrently – where the applicant will be eligible for parole after serving one-third of his head sentence – where the applicant was also disqualified from holding a driver’s licence for two years – where the learned sentencing judge considered the range reflecting the totality of the offending and arising from comparable sentences was eight to nine years’ imprisonment – where the learned sentencing judge adopted an eight year sentence because the applicant’s driving was not deliberately reckless – whether the learned sentencing judge erred in concluding the sentencing range was between eight and nine years – whether the sentence was manifestly excessive

Criminal Code (Qld), s 328A

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Blackaby[2010] QCA 84, distinguished
R v Goodwin; Ex parte Attorney-General(Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited
R v Hopper[2011] QCA 296, considered
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Thomas[2015] QCA 20, distinguished

COUNSEL:

F D Richards for the applicant
N Rees for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Gotterson JA and with the order his Honour proposes. I have nothing to add.
GOTTERSON JA: The applicant, Jiah Rhys Purcell, pleaded guilty to an indictable offence and a summary offence committed on 6 February 2015 and to four summary traffic offences committed on 2 August 2015. He was sentenced for all offending on 24 November 2016 in the District Court at Cairns.
The offences were as follows:
6 February 2015
·an indictable offence against s 328A(4)(b) Criminal Code (Qld), dangerous operation of a vehicle on the Cairns Western Arterial Road causing the death of Ricky Dillon Arthur Veit (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Purcell

Details

AGLC: R v Purcell [2017] QCA 111
Case: [2017] QCA 111
Decision Date: 31 May 2017

CaseChat Overview and Summary

The case of R v Purcell involves an appeal against the sentence imposed on the applicant following a guilty plea to charges of dangerous operation of a vehicle causing death and several summary traffic offences. The applicant was sentenced to eight years’ imprisonment for the indictable offence, six months for failing to stop, and two months for each of the other summary offences, to be served concurrently. Additionally, the applicant was disqualified from holding a driver’s licence for two years. The applicant’s eligibility for parole was set after serving one-third of the head sentence. The applicant argued that the sentence was manifestly excessive and that the sentencing range was incorrectly assessed.

The central legal issue before the court was whether the sentencing judge erred in concluding that the appropriate sentencing range was between eight and nine years’ imprisonment. The applicant contended that the sentence was manifestly excessive given the totality of the offending and comparable sentences. The court had to consider the principles of sentencing, particularly those relating to the dangerous operation of a vehicle causing death and the cumulative impact of the summary offences committed while on bail for the indictable offence. The court also had to examine whether the sentence imposed was proportionate to the seriousness of the applicant’s offending.

In assessing the appeal, the court considered the nature and gravity of the indictable offence and the summary offences. It noted that the applicant’s driving was not deliberately reckless, which influenced the sentencing range. The court concluded that the sentencing judge appropriately assessed the range and found no error in the judge’s determination. Given that the sentence fell within the assessed range and was not manifestly excessive, the court dismissed the appeal. The court confirmed that the sentence imposed was appropriate and did not warrant interference.

The court’s final order was that the application for appeal against the sentence was refused. The sentence of eight years’ imprisonment, along with the concurrent sentences for the summary offences and the disqualification from holding a driver’s licence, remained in place. The applicant’s eligibility for parole after serving one-third of the head sentence was also upheld.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Purcell [2017] QCA 111
PARTIES:	R v PURCELL, Jiah Rhys (applicant)
FILE NO/S:	CA No 1 of 2017 DC No 220 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 24 November 2016
DELIVERED ON:	31 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2017
JUDGES:	Sofronoff P and Gotterson JA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a vehicle causing death and five summary traffic offences – where four of the summary offences were committed while the applicant was on bail for the indictable offence – where the applicant was sentenced to eight years’ imprisonment for the indictable offence, six months’ imprisonment for failing to stop and two months’ imprisonment for each of the other summary offences to be served concurrently – where the applicant will be eligible for parole after serving one-third of his head sentence – where the applicant was also disqualified from holding a driver’s licence for two years – where the learned sentencing judge considered the range reflecting the totality of the offending and arising from comparable sentences was eight to nine years’ imprisonment – where the learned sentencing judge adopted an eight year sentence because the applicant’s driving was not deliberately reckless – whether the learned sentencing judge erred in concluding the sentencing range was between eight and nine years – whether the sentence was manifestly excessive Criminal Code (Qld), s 328A House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Blackaby[2010] QCA 84, distinguished R v Goodwin; Ex parte Attorney-General(Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited R v Hopper[2011] QCA 296, considered R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Thomas[2015] QCA 20, distinguished
COUNSEL:	F D Richards for the applicant N Rees for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent